Standing Committee D

[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

Clause 11 - Procedure where court makes order

Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: Good morning, Mr. Cook. We have made good progress so far and I hope that we shall make even more progress today. Before passing clause 11, I want to clarify what happened in another place and tease out the Minister's thinking on the changes that have been made to the clause, to which the Opposition tabled amendments.
 I refer specifically to clause 11(1)(b), which states that the court shall 
``inform the person of his rights under section 12 (right to review of delivery order) in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks''. 
The keys to the provision were the level of understanding and the language that would be used. The proposal in the Bill as originally drafted was to use ``ordinary language''. The commendable ensuing debate explored the amendment tabled by Lord Lester of Herne Hill to remove ``ordinary language'' and replace those words with the term 
``a language he fully understands and speaks''
 and the spirit of that proposal was accepted by the Government. The Attorney-General, the right hon. Lord Williams of Mostyn, said: 
 ``I shall certainly have a look at this matter.'' 
He undertook to write to Lord Lester and said that he would 
``place a copy of the letter in the Library for those noble Lords who may be interested. We want exactly the same thing. I believe that the words `ordinary language' have a virtue even in this Committee.''—[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1319-20.] 
However, the virtue of those words was not fully appreciated. When I went to the Library to discover the history of the clause, I perused the letter to which the Attorney-General referred—the letter dated 5 March to Lord Lester of Herne Hill. It dealt only with the Government amendments made on Report; it did not deal specifically with the amendment about ``ordinary language''. 
 I reiterate for the Committee's edification that the Bill was subject to a supposedly long consultation process—although I believe that it was too short. The Government implied that, as a result, the Bill was perfect; however, it proved so imperfect that many amendments had to be made on Report in another place, including the one to introduce the terminology now in the Bill. Instead of accepting Lord Lester's amendment which would have inserted the phrase: 
``a language he fully understands and speaks'', 
the Bill now contains the phrase: 
``a language which appears to the court to be one which he fully understands and speaks''. 
The letter dated 5 March to Lord Lester explaining the amendments to clause 11 states: 
 ``During the debate on 8 February, the Government agreed to look again at the provision on `ordinary language' in Clause 11(1)(b). In line with views expressed in committee, the amendment seeks to incorporate the need for the person to be informed of his rights to seek a review both in non-technical terms and in a language which it appears he fully understands. The amendment draws and expands upon the wording of the Statute to ensure that each of these distinct considerations is covered.'' 
I should have thought that to cover the considerations in the statute, the word ``appears'' was otiose. To use the phrase 
``a language that he fully understands and speaks'' 
places a different burden of proof on the matter than inserting the word ``appears''. In the other place, the Earl of Onslow made the eminently sensible suggestion that we could have the best of both worlds if the replacement for the term ``ordinary language'' were: 
``the ordinary language that he fully understands and speaks''. 
Why did the Government not accept the Earl of Onslow's suggestion, but insist on the higher burden contained in 
``which appears to the court to be one which he fully understands and speaks''? 
Why have the Government inserted the word ``appears''? How will a court fulfil that section of the statute? What tests will the judge apply to find out whether the person committed to custody understands the language used? How will that person appear fully to understand the language being used? That is especially important given that we may be dealing with people of many nationalities who speak a variety of languages or dialects and who may, as we discussed earlier, be mentally or physically infirm or below the age of consent. At this stage in the scrutiny of the Bill, it is important that the Minister explains fully what is meant by 
``appears to the court to be one which he fully understands and speaks''. 
and explains what tests the court will apply to ensure that that provision is fulfilled.

Ross Cranston: The issue is how a person will be informed of his right to ask for a review of the delivery order. As the hon. Lady said, the consultation draft referred to ``ordinary language''. Lord Lester and Conservatives in the other place asked what would happen if the person involved could not speak English. As the phrase ``ordinary language'' would not cover such a case, the Government introduced on Report an amendment to insert the terminology now in the Bill.
 The hon. Member for Chesham and Amersham (Mrs. Gillan) asked about the word ``appears''. I imagine that the parliamentary draftsman was trying to deal with a case in which someone feigned ignorance of the language. I am not at all surprised by the particular language in the Bill. Lord Lester welcomed the amendment on Report in the other place, and Lord Howell of Guildford said: 
 ``My Lords, it is now my turn to say—or not to say—``Snap''. I agree with what the noble Lord, Lord Lester, has said.'' 
in other words, he accepted the amendment—indeed, he added: 
 ``We are grateful that the amendments have been tabled.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 408.] 
Conservatives in the other place accepted the language—they were perfectly content with it. I suggest that the hon. Lady also accepts it and gets on with the more substantial issues raised by her hon. Friends in other amendments.

Edward Garnier: On occasion, defendants who appear before the English courts are found to be mute of malice—they probably can speak the language and understand what is going on, but they refuse to co-operate with the normal workings of the court. In such cases, it is within the court's power to make a declaration that a person is mute of malice. If a person refuses to co-operate with the court, the court can, of its own motion, take steps to deal with that. Will the Solicitor-General clarify whether, the policy behind the use of the expression:
``which appears to the court to be one which he fully understands and speaks''
 was to cope with such occurrences? Unfortunately, in his natural desire and haste to get on to other parts of the Bill, the Solicitor-General did not deal with that aspect of the concerns expressed by my hon. Friend the Member for Chesham and Amersham—[Interruption.] If the hon. and learned Gentleman wishes to address the Committee, he should do so on his feet. [Interruption.] That might be help from afar. Nonetheless, it would have been helpful if the Solicitor-General had dealt with that point. He says, from a sedentary position, that he has already dealt with it, but I would be grateful for clarification.

Ross Cranston: I am reluctant to return to my feet because I dealt with that point when I said that the wording was probably chosen to cover the problem of people who feign ignorance of the language, which was precisely the point raised by the hon. and learned Gentleman. That and other points were adequately covered in the other place, and the official Opposition in the other place were content. We have not yet come to important issues raised by the Opposition in the other place that we have a duty to consider, and I do not think that we should delay the Committee by considering spurious points.

Cheryl Gillan: I consider the Solicitor-General's reply to be extremely discourteous and disappointing. In considering the progress of the Bill, I reject the argument that merely because Members of the other place have agreed that something is better we in this House should be prevented from scrutinising it. That the word of unelected Members in the other place must be taken and elected Members in this House have no right to discuss matters further would be a dangerous precedent for the Solicitor-General to set.
 The Solicitor-General is quite wrong in his assertions. I raised the matter on clause stand part out of a genuine desire to discover the thinking behind the insertion of the higher hurdle into the clause. It is rather sad that at this stage a Minister cannot take seriously a point that has been put quite succinctly by the Opposition. I will not divide the Committee, but I have noted the Solicitor-General's change in attitude. He is dismissive of attempts to explore the thinking behind such issues—unlike the Minister of State, Foreign and Commonwealth Office, who has entered into the spirit on many occasions. 
 The amendment that has featured in our debate was tabled by the Government in the other place. I am sure that the Solicitor-General question anything that was done by a fellow Minister, but his explanation has been derisory. 
 Question put and agreed to. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Right to review of delivery order

Edward Garnier: I beg to move amendment No. 20, in page 8, line 35, at end insert—
 `( ) The Secretary of State shall not give directions for the execution of a delivery order where it does not appear to him to be in the public interest to do so.'.
 The debate on the amendment will be short. However, its brevity should not deceive us as to its importance. My concerns can be expressed simply. Without such an addition to the clause, the Government would appear to be making an admission that it is no longer they—let alone Parliament—who will be the decision maker on what is in the public interest. On recent occasions, the courts have made it clear that, as a general rule, the Government of the day decide what is in the public interest in a given situation. Through the absence of the wording which I want to import into the Bill there will be a massive—but hidden—transfer of political and constitutional power to an extraterritorial body. The extraterritorial body concerned is a court—the International Criminal Court—rather than a Government or an international organisation of the character and nature of the United Nations or the European Union. The way in which that transfer is being effected may not have occurred to members of the public, still less to Members of Parliament, and possibly not even to all members of the Committee. Powers are being handed over wholesale to an extraterritorial body. 
 The clause states that 
 ``The Secretary of State shall not give directions for the execution of a delivery order until after the end of'' 
a given period. It includes various other provisions relating to habeas corpus and a prisoner's rights to be released if he is wrongly apprehended, which is fair enough, but those are technical and legal procedural legal matters. However, in an echo of a previous debate, the Secretary of State has no discretion, either on his own behalf as a member of the Government or on behalf of the country, to say that the handing over of a particular person is not in the national interest. He is completely prohibited from exercising any discretion whatever as regards the handing over of an individual to that extraterritorial body in the event that the defendant does not come under one of the exceptions that we considered under clause 5, or cannot be released following a court hearing for habeas corpus. 
 It will no doubt be said—and I will have to take it on the chin—that that is just bad luck. The treaty that the Government have agreed says that the ICC has complete power over that aspect of our proceedings and nothing can be done about it. The treaty is the treaty: the statute of Rome cannot be amended by this Committee, let alone Parliament as whole—and I shall have to lump it. None the less, I want the Government to place their thinking about the clause on the record. Ministers should explain to the public why they are prepared to hand over those powers to that extraterritorial body. I shall be happy to listen to any explanation. On behalf of my constituents, I am extremely worried that the Government are prepared—not only through clause 12, but other clauses—to hand over willy-nilly huge domestic constitutional powers to an extraterritorial body over which Parliament has no influence.

Ross Cranston: The hon. and learned Member for Harborough (Mr. Garnier) says, rightly, that the amendment and his remarks echo previous debates. We have said that the United Kingdom has nothing to fear from complementarity. If we deal with our own nationals or residents and crimes against humanity—war crimes and genocide—on our territory, we have nothing to fear because the ICC will not have jurisdiction. We will not have to hand cases over to an extraterritorial body because we will deal with them ourselves.
 The amendment would give the Secretary of State the power to decide whether there is a public interest dimension to the execution of the delivery order. As I have previously explained, that would be contrary to our treaty obligations: we would be in breach of our obligations under the Rome statute. It would frustrate the aim of part II of the Bill, which is to give effect to ICC requests in an expeditious and straightforward manner, and therefore I must resist the amendment.

Crispin Blunt: Will the Solicitor-General explain his position that the amendment would be in breach of our obligations under the Rome statute? Will he assure the Committee that the whole of the Bill is in line with such obligations? The amendments that relate to clause 23 were tabled to right the fact that the Bill is not consistent with our obligations. How can the Solicitor-General say that his is a consistent position? He cannot reject the amendment on the grounds that he has advanced, because that line of reasoning is not consistent.

Gerald Howarth: I rise to support my hon. and learned Friend the Member for Harborough, and to suggest to the Solicitor-General that his answer is not satisfactory. He asserts that we should have no fear because of the principle of complementarity. We understand that, in foreseeable circumstances, crimes that are alleged against British citizens will be dealt with here. However, we all know that under article 17 of the treaty—``Issues of admissibility''—a case is inadmissible when is it dealt with by the nation state concerned
``unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute''. 
In circumstances that we cannot envisage, the United Kingdom may, for reasons that are believed to be good and sound, be unwilling to prosecute. The amendment would allow a future British Government in such circumstances to safeguard our citizens' rights and support the national interest if they believed that an unfounded case had been made that we had failed to deal with the alleged crimes according to the principle of complementarity. The amendment does not threaten the Solicitor-General's aim to incorporate the treaty into our national law, but it would provide a safeguard for a future British Government to protect the national interest if a decision of the ICC were unacceptable to them.

Edward Garnier: I am grateful to my hon. Friends for Reigate (Mr. Blunt) and for Aldershot (Mr. Howarth) for their contributions. I am also grateful to the Solicitor-General for his response, because he revealed more than I had expected by making it clear that the Government have nothing to say about the protection of the British interest. His response to my concerns was threefold. First, he assured me that there is nothing to fear. However, it is not a matter of fear, but of understanding the constitutional position of a Member of Parliament and, more particularly, of a Secretary of State in a British Government whose primary interest must be to protect the national interest—while, of course, always acting in a civilised and lawful manner. Although, we do not expect our allies and treaty partners to behave adversely towards us, we are entering into a treaty for all time, and the Committee should not therefore accept the diminution of our country's independence on the basis that we have nothing to fear.
 The Solicitor-General's argument also relied on the concept of complementarity. I accept that that principle is written into the statute, and that the ICC will not have jurisdiction over defendants in our country unless we do not properly deal with them in our courts. However, the Government of the day should always retain a sufficient ambit of independent action to protect British interests, and the statute and the Bill amount to a complete denial of our national sovereignty. It can be argued that a country's sovereignty is always eroded when it signs a treaty, but that does not answer my point. 
 The Solicitor-General's final point was that the amendment would frustrate the Bill. It would not—although I accept that it would frustrate the treaty, because it directly breaches the statute of Rome. However, my intention is not to tilt at windmills, but to expose a weakness in the Government's thinking with regard to the making of the treaty. I therefore regret that my questions have not been answered adequately. However, gesture politics have only limited value—especially now, when parliamentary business is rushed—so I will not divide the Committee. However, I wish to express my disappointment about how the matter has been handled. I hope that it will not come back to haunt the Government or any of their successors that our constitutional and political powers are being transferred wholesale, but in a quiet little way, to an extraterritorial body—not an intergovernmental body, but a court. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Gerald Howarth: I invite the Solicitor-General to clarify one point arising from the clause. Subsection (3) deals with the appeal process for habeas corpus. It states that the proceedings for habeas corpus should
``be treated as pending until they are discontinued or there is no further possibility of an appeal. For this purpose any power of a court to allow an appeal out of time shall be disregarded.'' 
Will the Solicitor-General explain why the power of a court to consider an appeal out of time shall, on this occasion, be disregarded? Surely it should reside with the court itself to determine whether an application should be entertained out of time?

Ross Cranston: First, in answer to the point made by the hon. Member for Reigate in the debate of the amendments, the Government take the view that the Bill is consistent with our obligations under the Rome statute and under international law.
 On the point made by the hon. Member for Aldershot, I assure the Committee that in no conceivable circumstances would we be unwilling to act. Article 17 of the statute defines unwillingness to act in terms of shielding a person or delaying in such a way as to defeat the object of the legal process. There are no conceivable circumstances in which the United Kingdom would act in that way.

Gerald Howarth: I am sorry to press the Solicitor-General on this matter. Sitting here today, we cannot conceive of circumstances in which a British subject who has committed an atrocity would not be held to account by a British court. However, there might be a clash between what the ICC perceives as willingness to proceed and what we believe is justified. The Solicitor-General appears to be taking the matter completely on trust—a trust that will bind successive Governments in circumstances that we cannot possibly foresee. It is our duty to our own people and especially to our armed forces to ensure that we provide some protection.

Ross Cranston: The issue is one of those on which shall simply have to disagree. The same applies to the points previously made by the hon. and learned Member for Harborough. We take a different view, but we do so on firm grounds, because article 17 of the statute is clearly drawn. The ICC could not conceivably adopt an interpretation of the clause that would not recognise justice as it is done in this country. On that basis, I think that I am justified in assuring the Committee as I have done.
 The hon. Member for Aldershot raised a specific point about the time period. It reflects the provisions in other legislation, such as the Extradition Act 1989, in which the time limit is absolute and the court has no discretion. We fear a situation in which cases might drag on for years, which is why the court has to act in the strict time frame set down in the clause. 
 Question put and agreed to. 
 Clause 12 ordered to stand part of the Bill. 
 Clauses 13 to 21 ordered to stand part of the Bill.

Clause 22 - Unscheduled landing

Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I have a simple question for the Solicitor-General. Why, in the negotiation of the statute, was the period of 96 hours arrived at? What is the reason for such an arbitrary period? Why was it not a longer period—say, seven days—or a shorter one?

Ross Cranston: The simple answer is that the clause deals with unscheduled landing. In such cases, we do not want a situation in which possibilities are open for habeas corpus to be sought by the person involved. The purpose behind the incorporation of the 96-hour period in the clause was to transfer the person to the ICC as quickly as possible.
 Question put and agreed to. 
 Clause 22 ordered to stand part of the Bill.

Clause 23 - Provisions as to state or diplomatic immunity

Robert Maclennan: I beg to move amendment No. 41, in page 14, line 17, leave out subsection (4) and insert—
 `( ) Where, in a particular case, the ICC has not made a final determination as to whether Article 98 of the Statute applies to a request, the Secretary of State may postpone his consideration of the request and consult with the ICC; and if the ICC advises that it has considered Article 98 and that it intends to proceed with the request, the Secretary of State must continue to deal with the request under this Part.'.

Frank Cook: With this it will be convenient to take amendment No. 52, in page 14, line 17, leave out subsection (4).

Robert Maclennan: I want to raise again matters that were raised in another place by my noble Friend Lord Avebury, who was supported by Lord Lester of Herne Hill. The debate will allow the Government to reconsider an important issue.
 As it stands, the clause affords the Minister the discretion to refuse delivery in certain cases. That approach is too cautious. It allows a discretion to the Minister that it would be wiser not to allow. The clause leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by or from the ICC. Clause 23(4) leaves it to the Minister to decide to whom immunity should attach in relation to non-state and state parties alike. Once again, that might leave the Minister open to considerable political pressure and prevent the United Kingdom from co-operating effectively with the ICC. 
 In another place, the Attorney-General made a distinction between discretion in relation to state parties, to which subsection (1) refers, and non-state parties, to which subsection (2) refers. The justification for that distinction is hard to see. My noble Friend Lord Avebury pointed out that it was wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events as a result of there being a dispute. The Attorney-General reaffirmed that there would always be consultation between the Secretary of State and the ICC and between the Secretary of State and a non-state party to ascertain, first, that no waiver had been issued and, secondly, that the person had the immunity that he claimed to have had. 
 The Secretary of State would want to exercise such discretion if he disagreed with the court about whether the accused had made out a case that he was a member of a non-state party and had the immunity that he claimed to have had. All NGOs that have examined that point have told the Government that it should be a matter for the ICC in accordance with the statute of Rome. The Attorney-General said that he thought that, in certain exceptional cases, subsection (4) could be necessary and that he was standing firm on the non-state parties. While there may be circumstances in which discretion may seem desirable on the part of the Executive, it is unnecessary and undesirable that the Secretary of State should be subject to political pressure if he were to decide in which particular exceptional circumstances subsection (4) applies. 
 My amendment is based on articles 66 and 120 of the New Zealand statute, which provide that when the Minister is concerned about the clash of the international obligations of New Zealand including immunities, he can consult the ICC to ask whether it wishes to proceed with the request. Such a consultation procedure would remove the Government's veto, but would allow the Secretary of State to raise his concerns about either state parties or non-state parties and to ask whether the court considers that an effective waiver has been issued and whether it properly applies to the individual concerned. 
 Let us suppose that there is a dispute about the effective Government of a state and the individual argues that the party that has issued the waiver and accepted the jurisdiction of the court does not have the necessary authority to do so. It seems highly unlikely that the ICC would ask us to set aside our international obligations in relation to state or diplomatic immunities, except when the state concerned has accepted its ability to do so. I understand that to be the purpose of article 98 of the Rome statute, and we should trust the ICC, when it is established, in respect of that statute. 
 If there were a conflict between the judgment of the Government and that of the ICC in such a matter, this country would be under an obligation to abide by the statute and to give the ICC priority. The amendment would not simply delete subsection (4), but would provide for consultation to eliminate such a conflict. In most circumstances, that would be the natural consequence of such a referral.

Crispin Blunt: It is a pleasure to follow the right hon. Gentleman. I am slightly at a loss about the effect of his amendment and I am not sure that it entirely distinguishes between state and non-state parties. My amendment would delete subsection (4), the reason for which I hope is crystal clear. Will the Solicitor-General, if he is replying to this part of the debate, explain the consequences of amendment No. 52? A distinction will have to be made between state and non-state parties to the agreement. I am happy to come back on Report and table another amendment making that distinction, which would leave subsection (4) as it is but for the removal of ``(1) or'' in line 19. The subsection would then refer to non-state parties, as subsection (1) refers to state parties.
 The importance of the issue cannot be understated, as it goes to the heart of the statute itself. Article 27 is absolutely explicit. It states: 
 ``This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence . . . Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.'' 
The article could not be more explicit. The whole purpose of the ICC is to bring to justice the leaders of countries who order the crimes on which the court will rule. 
 Will the Solicitor-General explain part of article 98, which to a small extent seems to qualify the absolute position taken in article 27? Later, I hope that we may have a discussion about universal jurisdiction and whether it is right for the United Kingdom, if it is a party to the words of article 27 and in the preamble to the statute, to try not only our own nationals when they fall within this jurisdiction but nationals of other countries for the heinous crimes laid out in articles 5 to 8 of the statute. We will have that discussion later, and ask whether the measures should apply to non-state parties as well as state parties, who are then within the scope of British law and within the United Kingdom. 
 Although article 27 is explicit, article 98.1 adds the point that countries that have not ratified the treaty and are therefore non-state parties will clearly have different international obligations with state parties. As I understand it, article 98.1 simply states that a non-state party to the agreement or a third state can properly expect the immunity of its diplomats and Heads of Government in dealing with a state party to be respected, as they are not a party to the ICC. Article 98.1 seems to give that protection to the diplomats and representatives of non-state parties. The Government clearly have a proper case to make in that regard, that the ICC and the statute and the international law that has been created to establish it, cannot be seen to override previous international law, not least that relating to immunity. 
 It is clear, however, that states that ratify the statute accept article 27 and, therefore, accept that immunity will not apply to their own people. How, then, can the Solicitor-General possibly defend subsection (4)? The subsection explicitly gives discretion to the Government by stating: 
 ``The Secretary of State may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings . . . under this Part which, but for subsection (1) . . . would be prevented by state or diplomatic immunity''. 
Subsection 1 states: 
 ``Any state or diplomatic immunity attached to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this Part in relation to that person.'' 
That is clear. In subsection (4), the Government are giving themselves the discretion to let off a diplomat, Head of Government or any representative of a party to the statute when faced by an ICC warrant for such a person's arrest. The Government cannot properly defend that position. In previous debates, the Government have resisted giving themselves discretion. They have resisted changing the word ``shall'' to ``may'', and they even resisted the proposal that Parliament should hold an inquiry into proceedings if there is a dispute with the ICC. The Government have resisted a public interest test about proceedings, and now they say that they will give themselves the discretion to let off diplomatic representatives or Heads of Government of countries that are party to the agreement. 
 Later, we shall discuss universal jurisdiction. I contend that subsection (4) can be dispensed with if the ICC is to be supported in the terms that the Government have put forward in signing up to the statute. If we in the United Kingdom are on the receiving end of a warrant from the ICC to surrender somebody who has been accused of crimes, why should the United Kingdom intervene? There is a case to be made for that, and I would like the Government to make that case when they say that my amendment, as drafted, would not be correct. 
 We must examine the Government's position, as set out in the explanatory notes, when we consider the matter, and how the Government have moved under pressure from the NGOs to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. In the initial consultation about the ICC there was no mention of diplomatic immunity. When that was pointed out to the then Minister, the hon. Member for Neath (Mr. Hain), he was shocked that the Bill would drive a coach and horses through the ICC because it would not deal with the matter of diplomatic immunity. Following that consultation, diplomatic immunity is in the Bill. 
 To be fair to the Government, the explanatory notes to clause 23 present their understanding of the case, which states: 
 ``Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person.'' 
The explanatory notes continue to say that article 98.1 draws the distinction between state parties and non-state parties, and make it clear that the surrender of a person for whom a warrant has been issued who is a representative of a non-state party can occur only once the permission of their state party has been obtained, if that person is a diplomat or has immunity. That suggests that subsection (4) is not consistent with the statute, although a case may be made that it would be consistent with article 98.1 if the reference to subsection (1) were struck from its provisions. However, there is a case for striking the subsection altogether. The Government—having resisted any discretion thus far—should not have discretion if they are in receipt of a warrant from the ICC, they should get on with it and surrender the person for the crimes that the ICC had identified. 
 What do the provisions of article 98.2 mean? I sat down with and without a wet towel and read it several times to try to understand what it means and whether it is different from article 98.1, but I do not understand. I should be grateful if the Solicitor-General would explain, in simple language that a simple ex-soldier like me can understand, what article 98.2 is intended to achieve.

Ross Cranston: Before I lose that point about article 98, paragraph 1 relates to international law, whereas paragraph 2 relates to international agreements. An obligation may apply under international law, but international law can be customary, for example. Paragraph 2 refers specifically to obligations under international agreements—in other words, treaties—and I suspect that that is the distinction.

Crispin Blunt: I concede the point about international agreements. However, is there a difference between a requested and a sending state? What do those terms mean? I understand that the requested state is on the receiving end of the request from the ICC, but how is that different from the sending state?

Ross Cranston: We may have to return to that. A moment ago, we discussed transit. The sending state may not be the requested state because of a transit issue. Perhaps I shall receive further clarification in due course. It seems that the sending state is the one that sends the diplomat, whereas the requested state is the one that receives the request. I hope that that helps the hon. Gentleman.

Crispin Blunt: Surely the two are the same. Why would the ICC issue a request to a state that could not send the person? That is why I do not understand article 98.2.

Ross Cranston: I think that we had better return to that.
 It is unsurprising that we return to the argument advanced by the right hon. Member for Caithness, Sutherland and Easter Ross, as it was dealt with in the other place and is important. He and the hon. Member for Reigate referred to our obligations under the Rome statute, article 27 of which states that immunity shall not constitute a bar to prosecution before the ICC. States that sign and ratify the statute agree to that provision. The clause provides that diplomatic and state immunity cannot shield representatives of state parties from arrest and surrender. As the right hon. Gentleman said, the position of state party is clearly set out in the statute. 
 The same is not true in relation to non-state parties, which will not have agreed to article 27. Under international law, we are obliged to accord diplomatic and state immunities unless the state involved has agreed to waive them. We have said all along that we hope that as many countries as possible will become state parties so that the category of non-state parties will be very small—in an ideal world, it would be non-existent. If they became state parties, they would agree to article 27. 
 Clause 23(4) provides the Secretary of State with the power to direct that arrest and surrender proceedings shall not take place against someone who enjoys state or diplomatic immunity, which would not prevent the proceedings from going ahead were it not for the clause. The clause also states that the Secretary of State can do that only after having consulted the ICC and the state involved. The clause also clearly sets out that the Secretary of State can do that only after having consulted the ICC and the state concerned. We explicitly accept that the Government must consult the ICC about whether issues of state or diplomatic immunity are involved in an ICC request. The clause is drafted in a way that provides for consultations with the ICC and the sending state of the person concerned, and their opinions would be carefully considered before a decision was taken. 
 We do not envisage that such circumstances will arise often, if at all. We are providing for a situation that is rare, and the details are difficult to predict. That is why subsection (4) has been included. As the hon. Member for Reigate mentioned, there was no such provision in the consultation Bill. We amended it as a result of comments made by NGOs and by those in another place. 
 Amendment No. 41 would tie the hands of a future Government with regard to rare and unusual cases that would be difficult to foresee and the details of which would be hard to predict. However, the provision makes it clear that the views of the ICC and the state concerned would be significant factors in any decision that might be taken, and it should therefore be included as a prudent measure against an uncertain future. The right hon. Member for Caithness, Sutherland and Easter Ross might not agree with that, but our policy is clear: war criminals must be brought to justice. 
 The hon. Member for Reigate correctly pointed out that subsection (4) covers state parties and non-state parties. As I have said, we have included the provision because we live in an uncertain world, and I therefore resist the amendments.

Crispin Blunt: Having listened carefully to the Solicitor-General's comments, I will not press my amendment. I wish to study what he has said, and to take further advice about the consequences of the Government's position, particularly with regard to the issue of immunity and the question of whether people who ought to be brought to justice under the statute will be able to escape prosecution. I want to discuss those matters with some of the learned friends who are associated with the NGOs that are following the proceedings before I adopt a clear position.
 I am still looking forward to a final explanation of article 98.2 and its differentiation between a requested state and a sending state—although I fail to see why the ICC should send a request to a state in which the person concerned is not residing.

Ross Cranston: I apologise for omitting to explain that. The hypothetical country that is always used in discussions about international law is Ruritania. If there is an ambassador for Ruritania, the sending state is Ruritania. The ICC may request the United Kingdom to surrender that person, and in that case the UK would be the requested state. That would be the distinction—if the ambassador is from Ruritania, that is the sending state. The requested state is the UK. I hope that that is a sufficient explanation.
Mr. Blunt indicated assent.

Robert Maclennan: The Solicitor-General is right to say that there is simply a division of opinion on this issue, which is probably not easy to resolve. I am no clearer about the circumstances that the Government are fearful of, and, in all candour, the Solicitor-General admitted that he could not foresee any in which it would be necessary to rely on the provisions in subsection (4). That proves to me that it is—to use the lawyer's phrase—ex abundanti cautela that the clause is being put forward. I remain unconvinced by the arguments deployed by the Solicitor-General. This is a straight issue of principle about who should decide whether or not the immunities persist or obtain. It seems to me that the statute provides for it to be in the determination of the court and not the Government. Should there be a conflict between the two, the court would decide. However, in the light of uncertainties, it would be inappropriate to press the matter. I shall certainly take further counsel on the point and perhaps return to it a later stage. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I want to take this opportunity to press the Solicitor-General further on the circumstances that surround the clause regarding state or diplomatic immunity. In his response to the amendments, he said that the Government's policy was clear, and that war criminals must be brought to justice. That is a commendable policy and one with which we would all agree. However, we require further and better particulars. It appears that under our commitment and ratification process—the introduction of this legislation will mean that all UK citizens, whether soldiers or politicians, will be subject to surrender to the ICC—we as a country can play host to visiting diplomats, heads of state and others who we will not be able to touch with a bargepole, as they say in some quarters. I would like the Solicitor-General further to identify the circumstances in which a visiting vile man could come on a shopping trip to Harrods and remain at liberty and at large. All of us want to satisfy ourselves that that cannot happen in the UK. It would be a crying shame to have gone through all the processes of negotiating the statute of Rome, introducing the legislation and discussing it at great length, to find that there was a lacuna whereby a perpetrator of a crime, who had diplomatic and state immunity, could come here for a shopping trip. That would upset us all greatly.

Oona King: Does the hon. Lady share my joy and pride at finding on closer inspection of the Bill that no such loophole would exist as long as the said war criminal was being investigated by the ICC, and the ICC made a request to the Government for his extradition? The said criminal would be brought to justice, notwithstanding the shopping trip to Harrods.

Cheryl Gillan: I thank the hon. Lady. Sadly, she is merely a Back Bencher and not in government. I seek such reassurances from those on the Government Front Bench.
 I want to explore how far we can push the argument. With regard to the perpetrators of a war crime who would not be subject to immunity on United Kingdom territory along the lines that the hon. Lady and I have been discussing, in some circumstances it may be desirable for such individuals to be subject to immunity pro tem. Over the past few years, there have been many negotiating processes, for example, at Rambouillet and Dayton. In an attempt to reassure myself and the Committee that peace processes can move forward, it is apposite to raise such issues to ascertain whether there would be room under the Bill and, in what circumstances, to enable a negotiating process to take place on a third party's territory. Instead of Rambouillet, could a peace process between two warring factions be held at Chesham and Amersham? We are considering the tension between a conflict resolution and justice. We must ensure that we have the correct vehicle for ensuring justice, but we do not want to inhibit a potential peacemaking or negotiating process that could result in the termination of a conflict and the saving of lives. 
 I hope that the Minister will deal with that issue because we must ensure that we are not cutting off a route to the many countries that will roll into the process. We are moving towards 60 and, as has been expressed, we are hoping eventually that the United States will decide that its concerns have been satisfied as, indeed, we hope that our worries will be under the Bill. That will be of small comfort, however, if we develop a court and a process that will inhibit the saving of lives and the cessation of violence and hostilities between parties. 
 The problem is of concern to me, and it may be to those to whom we offer asylum. We rightly continue to offer asylum to victims of conflict and persecution throughout the world, but people may wish to see the perpetrator of a crime brought to justice who might be invited here to negotiate a peace process. I want to ensure that the Bill does not remove any options for an exit route, which could bring about a cessation of hostility. 
 I refer to the matter because it was raised by the former Foreign Office Minister with responsibilities for Africa, the hon. Member for Neath , who, when asked about Dr. Savimbi, is alleged to have said: 
 ``I would say to him: `If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that.''' 
He is alleged to have said that to the Electronic Telegraph. I do not believe that that statement has been revoked, although the Minister may tell me differently. Certainly, that was the reported statement of the former Foreign Office Minister, who may have been trying to ensure that there was a way of concluding conflict. 
 If the statute, when it is enacted, removes the possibility of an exit route, it would be wrong to let the legislation slide through without exploring the limits and the possibilities of providing an exit route to individuals who have undoubtedly been part of revolting war machines and disgusting tactics used against their own people and others. There is no doubt that it is desirable to remove such individuals from the arenas concerned, and it is therefore necessary to consider the matter as a potential way of bringing hostilities to a conclusion. However undesirable it may be morally, it may be practically expedient to conclude matters. I am not advocating that as a course of action; I am merely trying to explore what possibilities would still exist if the legislation were firmly on the statute book. 
 There is also the question of the potential to disrupt diplomatic processes. Will the Minister reassure me that he does not see any reason to rewrite the diplomatic rules as they apply, or to develop further the way in which we do our business? It seems that the statute may deter face-to-face diplomacy if there is a fear that an individual may fall within the jurisdiction of the statute. Will the Minister therefore say how he has viewed the potential for the reduction of face-to-face diplomacy as a result of the treaty? What discussions has he or the Department had with other countries on the way in which they will handle such a situation? Our relationship with other countries vis-a-vis the statute is also of great importance. We cannot fulfil the conditions of the statute in isolation—we are dependent not only on the operation of the court but on the way in which other countries operate their regimes and diplomatic processes, and how they participate in events on the world stage. 
 I hope that this was a suitable debate in which to raise such issues, and I look forward to a response from the Solicitor-General.

Ross Cranston: The hon. Lady makes several points, some of which we shall discuss later in relation to universal jurisdiction. She mentioned the case of the person coming on a shopping trip. We anticipate that, once the court is up and running and states have introduced into their laws provisions comparable to part V to deal with such crimes nationally, people who commit them will not be taking many shopping trips. I suspect that already, as a result of as the Pinochet case, for example, people who commit war crimes, crimes against humanity, genocide and so on are not even thinking of taking shopping trips. However, we shall return to that. As we have said, as a result of signing up, immunities in general will not operate.
 The hon. Lady makes a valid point about how the operation of the Bill might affect the peace process and inhibit Dayton-type discussions, for example, but I believe that it has already been dealt with. Our view is based on article 16 of the statute, which states that when a resolution is adopted under chapter 7 of the charter—in the event of a threat to international peace and security—the Security Council may ask the ICC to suspend an investigation. If delicate peace negotiations are under way, the Security Council could pass a resolution, and Dayton-type discussions could take place. The hon. Lady makes a valid point, but it is dealt with by article 16. 
 More generally, a point of principle is involved. We would probably say that justice provides the best possible foundation for long-term peace.

Crispin Blunt: To make it absolutely clear in discussing a case such as Dayton and peace and reconciliation, the only provision in the statute under which investigations can be deferred is article 16. It requires all permanent members of the Security Council not to exercise their veto for that resolution to be passed. The resolution must be renewed every 12 months to sustain that position. Let us consider a case that does not relate to an international problem on which all five permanent members and a majority of the Security Council are agreed, and processes such as Dayton that relate to a national peace and reconciliation process that the international community is not willing to approve, or a regional process for which Security Council approval is not affirmative without a veto. In such circumstances, it is under article 16 only that exceptions can be found, and such peace and reconciliation processes could not proceed in the way that Dayton did.

Ross Cranston: Simply because the problem is regional does not mean that it would not fall under chapter 7 of the charter, and the Security Council might pass a resolution. The hon. Gentleman is right that the Security Council must make a decision, which requires unanimity. However, in the case of a Dayton-type situation, which was regional in the sense that it was European, or other regional conflicts, that will not necessarily act as a block on the Security Council passing the resolution.
 The hon. Gentleman is right that the resolution would operate for only 12 months and would have to be renewed, but as I gave way to him, I was about to say that we would take the view as a point of principle that justice, generally speaking, provides the best foundation for long-term peace. We believe that identifying and bringing to justice those persons who have committed the most serious crimes possible is the best foundation for reconciliation in war-torn societies. It may help the hon. Member for Reigate if I add that the national tribunal for the former Yugoslavia was set up under chapter 7 of the United Nations charter. The hon. Member for Chesham and Amersham raised a valid point, but article 60 provides the answer.

Cheryl Gillan: I thank the Solicitor-General for his response, but he did not address my point about the suggestion made by the hon. Member for Neath when a Foreign Office Minister. What are his views on that proposed solution in relation to the provisions in the Bill?

Ross Cranston: In Hansard, on 8 March, at column 382, my noble Friend Baroness Scotland of Asthal, the Under-Secretary of State, Foreign and Commonwealth Office, refuted the statement alleged to have been made by my hon. Friend the Member for Neath, the Minister for Energy and Competitiveness in Europe. I can hand the hon. Lady that passage, from which she will see that my hon. Friend did not make the statement about immunity to which she referred.
 Question put and agreed to. 
 Clause 23 ordered to stand part of the Bill. 
 Clause 24 ordered to stand part of the Bill.

Schedule 2 - Delivery up of persons subject to criminal proceedings, &c. Question proposed, That this schedule be the Second schedule to the Bill.

Edward Garnier: The schedule belongs with clause 24, and I shall ask the Government some brief questions. First, paragraph 2(3) on page 48 states:
 ``If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State . . . shall consult the ICC before giving directions for the execution of the order''. 
In this context, what does ``consult'' mean? Does it imply that the Secretary of State may not do anything without the consent of the ICC and that he will take into account its answer in some way, or does it simply mean that the Secretary of State will inform the ICC of what he wants to do before doing it? My question applies equally to paragraphs 12(2) or 13(4), and to other examples that may exist within schedule 2 of the use of the words ``consult'' or ``consultation''. 
 Paragraph 2(5) states: 
 ``This discontinuance under this paragraph of criminal proceedings in respect of an offence does not prevent the institution of fresh proceedings in respect of the offence.'' 
Will the Solicitor-General confirm that article 20 overrides that provision? That question relates also to paragraph 4(5). 
 Paragraph 5 deals with the effect on custodial sentences. How will the schedule affect the Rehabilitation of Offenders Act 1974? I appreciate that most of the sentences that ICC defendants will receive will be lengthy and may well be life sentences, so the Rehabilitation of Offenders Act 1974 may not bite. However, in the event that the ICC hands out a short sentence that comes within the current provisions of the Act, will the provisions of the Act apply to such a sentence? 
 Paragraph 12(2) in part 3 of the schedule states: 
 ``The Secretary of State shall inform the court of the request and of the outcome of the consultations.'' 
Is the word ``inform'' used in the straightforward sense of a person simply telling somebody what is being done— to tell the court of the request and the outcome of consultations—or is there an extra meaning that should be read into the word? Such concerns are similar to those that I had about the word ``consult''. These questions may not detain the Solicitor-General for long, but I ask him to address them before we proceed.

Ross Cranston: In terms of paragraphs 2 and 12, there are two ends of the spectrum. At one end, there is the matter of simply informing someone of something—``consult'' may mean that; at the other end is a situation in which the person informed has a veto. Consultation falls across the spectrum. One consults rather than simply informs because one discusses the matter with a person and takes into account what a person may say. As the explanatory memorandum makes clear, the purpose of consultations would be to
``determine when and how the surrender will take place.''
 Consultation would occur so that matters would be discussed and taken into account before a decision was made. The ICC would not have a veto. However, paragraph 12 contains the word ``inform''—there is no consultation there. That deals with the first and fourth points made by the hon. and learned Member for Harborough. 
 The second point that the hon. and learned Gentleman made was about paragraph 2(5). There is a distinction between discontinuance of proceedings, and a situation in which proceedings are taken to completion. Under article 20 a person who is tried cannot be tried for a second time following an acquittal. However, one may start proceedings that are discontinued, which under our domestic law is not a bar on restarting proceedings.

Edward Garnier: Would the normal abuse applications apply? If a matter was discontinued and subsequently restarted, would the defendant be able to apply to have the proceedings stayed on the basis that they were an abuse?

Ross Cranston: In terms of the ordinary rules, the abuse argument would prevent the prosecution from starting again. The hon. and learned Gentleman knows that there are discussions continuing with the Law Commission on whether we should change our domestic proceedings on abuse applications, so that the prosecution could apply to have a judge's decision on abuse set aside. However, at present, a stay resulting from an abuse application means that the matter cannot be started again.
 I will probably have to write to the hon. and learned Gentleman about the matter relating to the Rehabilitation of Offenders Act 1974, but I might be able to tell him about it later today. 
 Question put and agreed to. 
 Schedule 2 agreed to.

Clause 25 - Documents having effect as warrants, &c. Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I have a brief and simple question. The clause deals with documents that have effect as warrants. The explanatory note states that
 ``This clause provides that a copy or a faxed version of a warrant or other document shall be treated as if it were the original and shall be admissible in evidence.'' 
With regard to that statement, will the Solicitor-General clarify the standing of electronic transmissions and e-mail? Although we are legislating for the long-term future, it appears that we are dealing only with instruments of communication of the past.

Ross Cranston: The legislation appears to deal only with faxes, so it might not be completely up to date. I think that the matter has been debated. The issue of e-mails might be more thoroughly addressed in the future, but they would be covered by the legislation if they were confirmed by fax. However, I concede that we are not up to date. That is generally the case with regard to court procedures: e-mails are not recognised as serving documents. We will have to make progress on such matters.

Cheryl Gillan: I am glad that the Minister has acceded to a point. It is a simple matter but important, especially bearing in mind the accelerating pace of advances in communications. I am unsure whether the matter can be resolved, but it is not contentious. If it could be dealt with by, for example, a small technical amendment, my party would be pleased to accept that. However, it is crazy that a Bill that is intended to address the long-term future does not deal with a form of communication that is readily available and increasingly used by Governments here and abroad. After all, e-mail is a cost-effective way of communicating.

Edward Garnier: Would my hon. Friend accept that the easiest way to deal with the matter might be for rules to be provided for via secondary legislation? That would allow for the proper making of procedures, so that the delivery of instruments and so forth could be properly set out under subsidiary rule-making powers. Perhaps my hon. Friend or the Government are attracted to that proposal.

Cheryl Gillan: I am willing to explore with the Government any possibility that would allow for modern communications to facilitate swifter contact between organisations. If my hon. and learned Friend's suggestion found merit in the Government's eyes, I would give it my support, although Ministers will want to consider his proposal further before agreeing to it.
 Question put and agreed to. 
 Clause 25 ordered to stand part of the Bill. 
 Clause 26 ordered to stand part of the Bill.

New Clause 1 - Jurisdiction of the court

`.—This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.'.—[Mrs. Gillan.] 
 Brought up, and read the First time.

Cheryl Gillan: I beg to move, That the clause be read a Second time.

Frank Cook: With this we may discuss the following: new clause 5—Ratification: reservations and declarations—
 `The Secretary of State shall not ratify the ICC Statute unless— 
 (a) a report is laid before Parliament, setting out— 
 (i) any reservations Her Majesty's Government proposes to make and the reason for those reservations, 
 (ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and 
 (iii) that report is approved by each House of Parliament.'. 
New clause 7—Declaration upon ratification— 
 `This Act shall have effect subject to the making of a declaration by Her Majesty's Government upon ratification, to be deposited with the Secretary General of the United Nations, as follows— 
 ``Her Majesty's Government, being cognizant of the declaration upon signature by the Government of the State of Israel, will itself reject attempts to interpret its provisions in a politically motivated manner against actions of the United Kingdom and its citizens. Her Majesty's Government hopes that the United Kingdom's expressions of concern at the consequences of politicization of the intended central impartial body will help prevent the undermining of the objectives of the Statute.''.'.

Cheryl Gillan: I thank Ministers for proposing that the discussion of the new clauses be brought forward, as it will ensure that we have the opportunity to examine properly the important issues and principles that they raise, which might otherwise have been addressed only at the tail end of the scrutiny of the Bill. I hope that discussing them at this stage will mean that they are not rushed through, but thoroughly aired in Committee. The issues that they raise have been discussed in another place, but bear further discussion in Committee, not least because of the concerns raised by those observing our proceedings, of whom I know the Minister is aware.

John Battle: I did not formally propose to bring forward the new clauses, but it is fair to say that we had a conversation with the Opposition in which they suggested that it made more common sense to deal with them at this juncture. We reached mutual agreement on that point, as it will enable us to raise some of the important matters discussed in the other place in the context of the Bill before us. Otherwise new clauses will be tagged on at the end, after the debate is already halfway through. That was the amicable arrangement to which we came, and why we are discussing them now.

Cheryl Gillan: I do not dispute that at all—quite the reverse. There was merit in the way in which business was ordered in the other place, whereby the new clause came before consideration clause 1, rightly taking precedence, and was discussed at the beginning of the Committee rather than halfway through. However, I agree that the compromise seems to be the most sensible arrangement. I am glad that debate on the new clause has fallen to be discussed today, rather than on Thursday afternoon when the guillotine falls. While on that subject, I cannot help but say that it is a shame that we had to have a programme motion. Some accommodation on the Bill's timetabling could have been reached between the Front Bench members of the Committee and avoided the heavy-handed mechanism of the programming motion that now appears to attach to every Bill.

Frank Cook: Order. We are in danger of being unduly repetitious. Please can we move on to the new clauses?

Cheryl Gillan: I would hate to repeat myself, Mr. Cook. I would hate to repeat myself. [Laughter.]
 New clause 1 relates to the jurisdiction of the court. The new clause states: 
 ``.—This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.'' 
The new clause would secure us a seven-year opt-out from the offence of war crimes, as has happened in other countries. The matter is of such significance that we must consider article 124 of the Statute, which is described as the ``Transitional Provision''. 
 Throughout debate in the other place, we felt that the Minister failed adequately to answer the concerns expressed by ourselves and others. We certainly would not want to give the impression that we do not welcome measures that will bring to book those who have committed crimes against humanity, but when the treaty on which the legislation relies—indeed, which it is designed to duplicate, without any changes—contains such a provision, it seems a crying shame that we do not use the article provided, which will give the French a seven-year opt-out, during which time they will have the opportunity to see how the court progresses. If we were to adopt the same route, it would ensure that British citizens, and particularly members of our armed forces, were protected in a way that strikes us as desirable. 
 Article 124 states: 
 ``Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.'' 
Article 123.1, states that: 
 ``Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.'' 
The Government set out their position on the seven-year opt-out in characteristically brief terms. They appeared to have a closed mind and to be unwilling to discuss the matter. I refer to the International Criminal Court consultation on draft legislation, published only in August 2000 by the Department, in which the draft Bill was set out. Page 7 states: 
 ``The Bill makes no provision for the UK to take advantage of the seven-year opt-out for war crimes provided for in Article 124 of the Statute. The UK does not intend to take such an opt-out.'' 
There was no explanation.

John Battle: The explanation is self-evident. We are content with the definition of war crimes set out in article 8 of the statute. That is already written into British law.

Cheryl Gillan: Why could that explanation not have been appended to the document? While we discuss the articles and choose, in the Government's wisdom, not to take advantage of the seven-year opt-out, the French Government, in their wisdom, have examined the same articles and ratification process and decided to take advantage of the opt-out. The matter was raised with the Foreign Office in a written question, answered on 10 November 1999. When the Department was questioned about the opt-out prior to the publication of the consultation document, the answer was characterised by a brevity that would be commendable in some instances, but that was quite inexplicable in this one. The then Foreign and Commonwealth Office Minister responsible, the hon. Member for Neath (Mr. Hain), said:
 ``We have no plans to use Article 124 of the International Criminal Court Statute to opt out of the Court's jurisdiction over war crimes. We hope as few countries as possible will take advantage of this provision.''—[Official Report, 10 November 1999; Vol. 340, c. 546.]
 That gave a small glimmer of light, as it gave the impression that that Minister sought to influence other countries involved in the ratification process not to take advantage of article 124 of the Rome treaty. That is an exception: in all other instances at all other stages of all debates on the issue, the Government have insisted that we cannot make changes because we must embrace the statute of Rome and nothing but the statute of Rome. However, the Government have now suddenly decided to dismiss article 124 out of hand. That seems a logic gap.

John Battle: It is not so much a logic gap as a question of negotiation. The statute was the result of negotiation between many countries. We said that we could live with it but that if that article were included, we did not intend to use it ourselves. We do not encourage others to use it but if it is absolutely necessary for it to be written into the text and that can be done without denaturing the statute, we will agree to it because we need a consensus to get the court up and running.

Cheryl Gillan: That seems a remarkable compromise on the Government's part. They wanted the whole statute and nothing but, but they are now willing to sit back and allow one of our close associates within the European Union—France must be so described—to take advantage of a provision that gives protection only to its own citizens and armed forces. That is a key point. The Government have not explained why they are not taking the seven-year opt-out—they just say, ``That is the way it is; this is what we are doing. We are quite satisfied and happy.''
 We must consider the way in which other people perceive the Government's position. It is significant that there has been support for the spirit of new clause 1 among the Government Benches in the other place. Lord Shore of Stepney, who is a force to be reckoned with and a man of considerable experience in both Houses, was moved to take part in the debate. Commenting on new clause 1, he said: 
 ``The minor suggestion made by the Opposition Front Bench is just an effort to do their best with what apparently is an inviolable convention in a Bill that must in no way be tampered with and amended, even where the most obvious sense and intelligence, based upon our own experience, tells us that some of these clauses are ridiculous. Unless one lives in a world inhabited only by international lawyers,''
 —goodness forbid— 
``one will recognise that without any difficulty. I am sorry to speak with vehemence on this matter.'' 
That is a powerful comment from someone for whom I know the Minister has a great deal of respect. Lord Shore went on: 
 ``I will not have our people dragged before some court because we have used depleted uranium, which many people believe to be poisonous.''.—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 360.] 
Lord Shore was expressing an impartial view on why we should adopt the seven-year opt-out. The amendment was put to the vote in the other place. The result was 69 contents and 122 not contents—53 against, if my maths serves. Lord Shore went against a three-line Whip and voted with the Conservatives. [Interruption.] I make no apology for praying him in aid because it is important to listen to his views. The Minister must listen more carefully to the views of senior statesmen in his party rather than always give attention to the Opposition. I am interested in the noble Lord's comments on that sensible Opposition suggestion. 
 There is a great deal of concern in the armed forces. My hon. Friends will want to reflect that in their contributions on the new clauses when they have the good fortune to catch you eye, Mr. Cook. We need only look at some of the commentary surrounding the passage of the Bill to see that the concerns have been aired in public should rightly be discussed in Committee. Both The Daily Telegraph and The Guardian report on their front pages of 7 March the concern felt by top military commanders that the proposed ICC could lead to British troops being prosecuted for war crimes and that it could prevent British peacekeepers from carrying out their tasks effectively. The Guardian reported a senior defence source as saying: 
 ``Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals''. 
Far be it from me to speculate on the identity of that unnamed defence source, but I am sure that The Guardian stopped short of printing lies and that the matter was discussed at length.

Crispin Blunt: Perhaps it would assist my hon. Friend to know that other newspapers referred to
``sources close to the Chief of the Defence Staff''. 
We all know what that means.

Cheryl Gillan: I am grateful to my hon. Friend. I shall not press the matter any further. There is a serious point to be made. Senior defence personnel are reluctant to put their heads above the parapet. According to The Guardian that senior defence source added that
``ministers were `very aware' of such a prospect. He said he was concerned in particular about conflicts and operations, short of a full-scale war, even—paradoxically—where British forces were engaged in support of the UN.'' 
It would be a turn-up for the books if British troops deployed to support the UN in Sierra Leone or elsewhere faced prosecution as war criminals under the Bill. 
 I know that the Minister will respond properly. I am sure that he will tell us that there is nothing to worry about, but it is important that we have this debate because many men and women think that there is something to worry about. Their minds must be set at rest, not least the minds of those who put their lives on the line every day for this country and its interests. I cannot stress too much the importance that I attach to the Minister's response. 
 Another senior defence source said that: 
``future rules of engagement could, for instance, prevent a British warship from attacking a hostile vessel until it was too late.'' 
The Minister must address that issue in detail. If military or naval commanders claim that a British warship could be prevented from attacking a hostile vessel, he must tell us why that would not be the case and how our troops are protected in that instance. 
 Others have raised the case of Senator Pinochet. Michael Caplin, his former lawyer, questions how the Prime Minister could defend himself if he were charged with bombing targets in Kosovo in the knowledge that civilians might be killed. As we are being so magnanimous as to introduce a statute into this country's legislation that will make all our politicians, soldiers, airmen, serving naval officers and ratings subject to this law? An important question must be answered in connection with new clause 1. Our Prime Minister may find himself a subject of the legislation. 
 On 7 March, The Guardian reported that 
``the Foreign Office insisted . . . that the treaty establishing the court merely'' 
incorporated the 
``existing tenets of international law. Rules of engagement for British commanders were always consistent with international law such as the Geneva conventions''. 
The Department is reported to have said that: 
 ``Safeguards have been inserted into the bill to prevent politically-motivated prosecutions . . . In the first instance any investigation will be carried out by authorities in the country whose nationals are accused of wrongdoing.'' 
That is fair enough, and no more than I would expect a spokesman for the Foreign and Commonwealth Office to say. However, there is no doubt that senior defence sources made it 
``clear that, in their view, the safeguards are not sufficient'' . 
One senior official spoke of the need to ensure 
``that there is a framework that does not prevent us from doing what we set out to do.'' 
He went on to say that: 
``the new rules could make new types of weapons illegal. In other walks of life, new regulations were being introduced with very good reason to make the workplace safer'', 
but that the military 
``should, not be forced to follow . . . slavishly . . . bits of European legislation'' 
Will the Solicitor-General tell us what new types of weapons may be made illegal under the legislation, and assure us that we are not following slavishly something that will inhibit the way in which this country conducts its business diplomatically and, by virtue of the deployment of its armed services, to the greater good of the interests of British citizens and those we seek to protect in other territories? 
 That is not the end of the matter. The article continues: 
 ``Another military source cited as an example rules which might prevent helicopters from exercising—or even training for rescue missions'' 
in bad weather, for example. I also seek the Solicitor-General's assurance on that matter. I am loth to deploy more quotations, but it is obvious that the former Chief of Defence Staff, Sir Charles Guthrie, and his successor, Admiral Sir Michael Boyce, are concerned about what they see as an increasingly litigious society. We must be careful that we do not defer too much to political correctness with the result that we hamstring effective and efficient tools of state such as the armed services. In the minutes of evidence and appendices to report of the Select Committee on the Armed Forces Bill published on 13 March, Admiral Sir Michael Boyce, on being questioned about the ICC Bill, is quoted saying that: 
 ``I do know a bit about this Bill and I think we need to be very careful indeed that when the Bill is taken through Parliament, we do not put ourselves in a situation where a junior person carrying out orders which he believes to be entirely proper can subsequently find himself in front of the International Criminal Court. So far I have been told that this is unlikely to happen because the national court would have the opportunity to investigate the case if it were pointed in that direction by the ICC.'' 
I need assurances from the Solicitor-General. We must be careful as the Bill goes through Parliament.

John Battle: The hon. Lady referred to the crucial phrase:
``if it were pointed in that direction by the ICC'' 
We must all bear in mind that it is United Kingdom courts which will take action first—that will be the usual procedure. Only if they are unable and unwilling to act would such matters go to the International Criminal Court.

Cheryl Gillan: That is what Admiral Sir Michael Boyce said.

John Battle: Admiral Sir Michael Boyce has not got it quite right.

Cheryl Gillan: I shall give the Minister the opportunity to elaborate on that in his response. On 7 March in BBC Newsline, the former NATO commander Admiral Sir James Eberle said that it was vital that commanders in the field should not be put in a position where they are concerned about what is right and what is wrong at the expense of risking their own lives and those of the men they command. It is proper that we examine those reasonable worries of senior defence people, whether named or unnamed, given that Ministers are aware that, if the wrong rules of engagement are set, commanders could find themselves liable to prosecution as war criminals—as was set out by an unnamed senior defence source. The Minister will need to make sure that the record is clear on such matters.
 Will the Minister explain the position of the new European army? We are facing the prospect of a force that made up of soldiers, airmen, naval officers and ratings from many countries. A British soldier will be serving alongside a French soldier and they will be commanded by a European Union military planning centre. I am not making the political point that we are developing a European army that will be outwith NATO. That argument can be deployed in another place.

Mike Gapes: Is the hon. Lady aware that British soldiers have served under French command in Bosnia, fought alongside French soldiers in the Gulf and regularly undertake activities with French soldiers in NATO? What is the problem?

Cheryl Gillan: I am glad that the hon. Gentleman does not perceive a problem. I hope for the same reassurance from the Front Bench. However, the ICC is not yet in existence, and the Bill is not applicable in such circumstances. Is he suggesting that the Bill should be retrospective? He should wait until I have deployed my argument, because I am asking questions that need to be answered.
 If a European force is subject to the command of a European military planning centre and chain of command—I may not be using the correct military phrases; if not, I apologise to members of the Committee who have served in the armed forces—and a French soldier is sitting alongside a British soldier who is being told what to do by a European force, is the French soldier and not the British soldier subject to the seven-year opt-out? Will the French soldier be ordered to carry out the actions, because there will be no danger of him being brought to book under French statute? Why should soldiers in this country be disadvantaged vis-a-vis French soldiers operating in the same territory under a common chain of command?

Crispin Blunt: My hon. Friend has raised an intriguing question and we look forward to hearing the Minister respond to it. Many operations are carried out under international auspices, especially those of the European rapid reaction force. A European operation may be under the command of a Finnish general. If the Council of Ministers gave an instruction and actions were committed that amounted to a war crime warranting a prosecution by the ICC, who would end up being held responsible when, in executing a legal order, all parts of the chain of command are guilty?

Cheryl Gillan: It might come as a shock to my hon. Friend, but I do not know.

Frank Cook: Order. I find no one's head intrinsically offensive when looking at the rear of it, but I remind both Front Benchers that their remarks should be addressed to the Chair.

Cheryl Gillan: No discourtesy was intended, Mr. Cook. I take your admonition on the chin.

Frank Cook: Which one?

Cheryl Gillan: I shall let that comment pass. I do not know the answer to my hon. Friend's question. I could presume to give an answer, but, sadly, I am not in government and I am waiting for the Minister to reply.

John Battle: I can help the hon. Lady—she does not need to wrestle with those questions. The ICC will not create new laws. If British soldiers break our laws, they will be brought to book under our laws, irrespective of whether the soldier is serving under a French, German or Australian command. If they break the law, they will be dealt with under British law, so what is the problem?

Cheryl Gillan: I do not think that the Minister has even understood the problem, which greatly worries me. If a French soldier is standing alongside a British soldier, taking part in the same action, firing guns simultaneously, the British soldier would be subject to our legislation, but the French soldier could take advantage of the seven-year opt-out.

Edward Garnier: I do not want to distract my hon. Friend from her argument, but I can suggest an answer. The British soldier would, under the complementarity rule, be subject to the British courts first. If that proved unsatisfactory, the ICC would have jurisdiction. If the French soldier committed a war crime, he would be subject to French national law and would be tried under the French courts in Paris. He would not subsequently be extradited to the ICC if the ICC thought that the French had dealt with the matter unsatisfactorily. That is the answer to my hon. Friend's question. The Minister could have answered it, but was not perhaps up to speed.

John Battle: I notice a wink in the hon. and learned Gentleman's eye.

Edward Garnier: Having cast that problem aside, I look forward to hearing what my hon. Friend has to say.

Cheryl Gillan: I am grateful to my hon. and learned Friend, who confirms that the French soldier has an advantage over the British soldier.
 The treaty took many years to negotiate with the input of many people around the world motivated by the intention that eventually there would be a vehicle to ensure that the worst perpetrators of abuses on other human beings were, rightly, brought to justice. Considerable thought must have gone into article 124; it must have been put into statute with good reason. Although I share the Government's aims and objectives in wanting the ICC to come into existence, we should have considered article 124 more carefully and taken advantage of its provisions to ensure that our troops and citizens are protected during the court's emergent phases.

Gerald Howarth: The French Government have entered not only reservations, but specific reservations. If the French Government were as confident as the British Labour Government that in no circumstances would their troops ever be arraigned before the ICC, they would have had no need to enter any reservations. Have they not entered reservations not because they know that they have initial responsibility for holding their own forces to account, but because they fear that there is a risk that their troops, acting in pursuit of the French national interest, would be arraigned before the court? I shall refer to those reservations if I catch your eye later, Mr. Cook.

Cheryl Gillan: I am grateful for my hon. Friend's intervention. I am sure that he will catch your eye eventually, Mr. Cook.
 I have made my case for new clause 1, which is of primary importance. We would have expected article 124 to be fully incorporated in the measure, as was made clear by my noble Friends in another place and by the shadow Foreign Secretary, my right hon. Friend the Member for Horsham (Mr. Maude), on Second Reading. I hope when the Minister responds to the debate he will pay attention to our reasonable request to accept the new clause. It embodies the spirit in which the treaty was negotiated and placed before the nations of the world. I see no reason why we should disadvantage British citizens and the United Kingdom. 
 In 1999 the then Minister of State, Foreign and Commonwealth Office, the hon. Member for Neath, said that he hoped that as few countries as possible would take advantage of the opt out. What discussions were held between the Department and the French foreign office? It seems that the arguments deployed must have fallen on deaf ears. It would help the Committee to know what arguments the French and our Ministers deployed. Will the Minister tell us whether the other countries that are seeking to ratify the proposal have said whether they will incorporate article 124 into their legislation? Will the French stand in glorious isolation in offering protection to their armed forces and citizens? 
 Having spoken to new clause 1, I shall resume my seat and allow my hon. Friends to promote the other clauses in the group.

Edward Garnier: I shall concentrate on new clause 5, which is of a slightly different character from new clause 1. My hon. Friend the Member for Chesham and Amersham spoke about the jurisdiction of the court; I shall speak about the relationship between this place and the Government in the making of treaties. I shall, no doubt, be accused of being obsessed with the problem; I bring out that little hobby-horse in most of our sittings, and by the time we have completed the Committee stage it will be pretty fit. I want to develop the arguments because they are important, relating to the extent of parliamentary involvement with the Executive branch of government when the Government sign and ratify international treaties and make reservations or declarations under those treaties.
 There was some discussion of the matter in the other place on 20 March, when broadly similar new clauses and amendments were discussed. The Liberal Democrat peer Lord Lester of Herne Hill advanced several arguments. Surprisingly, he said that he was not as full-hearted a democratic as my noble Friend Lord Howell of Guildford: whereas Lord Howell, in advancing the equivalent of new clause 5 in the other place, wanted to explore the relationship between Parliament and the Government's treaty-making powers, Lord Lester said that that was taking democracy far too far. That is interesting, although he might have taken his party a little too far. 
 Lord Lester said that a little while ago he had introduced a private Member's Bill in the other place that required the Government to print impact statements to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. He went on to say that the previous Government had accepted impact statements, and told the House that such statements were now laid with treaties so that parliamentarians had some idea of the object, purpose and impact of any given treaty. He went on to say that he hoped that in future important treaties that the Government were minded to ratify would be referred to a Select Committee in the other place, with a view to those treaties being properly examined. He was not prepared to go as far as we would like—in the case of statute of Rome, to require the Secretary of State, prior to ratification, to lay a report before Parliament that would detail any reservations or declarations that the Government propose to make, and to require that that report should be approved by both Houses of Parliament. The Government do not intend to make any reservations, so there would not be much in that part of the report. I am not yet sure whether the Government intend to make any declarations, unless they intend that any communications made to it by the ICC, be they delivery orders or requests, should be made in English. If any other such declarations are to be made, we have yet to hear about them. As the Bill left the other place, the Government were not of a mind to introduce any such declarations. 
 While Lord Lester dealt with the arguments that we are now having on a constitutional level, my noble Friend Lord Howell dealt with them on a more practical level. He was worried about the consequences of the introduction of the statute into our domestic law for our citizens, especially those in uniform. Introducing his amendment, he said: 
 ``The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1290.] 
We all understand that article 120 makes life a little difficult for legislators, as reservations may not be made to the statute of Rome. That is clear in the statute, but one must assume that the French, Israelis and New Zealanders signed up to the same statute, yet those three countries, among others, have issued detailed reservations—capital R reservations rather than small R reservations, according to the language used in the other place—on signature of the statute. Those reservations may be compared with the reservations or declarations to which the Attorney-General referred, which have been entered by state parties such as Austria, Finland, Belize and Norway. 
 Austria, for example, has issued a declaration or reservation stating that: 
``requests for co-operation and any documents supporting the request shall either be in or be accompanied by a translation into the German language.'' 
The Attorney-General referred to that sort of reservation. The Kingdom of Belgium declares that: 
``the Ministry of Justice is the authority competent to receive requests for co-operation.'' 
Belize declares that: 
``all requests made to it in accordance with Chapter 9 be sent through diplomatic channels.'' 
All those declarations or reservations are uncontroversial. The Republic of Finland declares that: 
``requests for co-operation shall be transmitted either through the diplomatic channel or directly to the Ministry of Justice''. 
Those declarations stand in marked contrast to the reservations drafted by France, New Zealand and Israel. 
 I share with the Committee some of the reservations entered by France. The first of what are called ``interpreted declarations'' states: 
 ``The provisions of the Statute of the International Criminal Court do not preclude France from exercising its inherent right of self-defence in conformity with Article 51 of the Charter.'' 
Secondly, the declaration states: 
 ``The provisions of article 8 of the Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons nor impair the other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defence, unless nuclear weapons or the other weapons referred to herein become subject in the future to a comprehensive ban and are specified in an annex to the Statute by means of an amendment adopted in accordance with the provisions of articles 121 and 123.'' 
As we all know, article 8 sets out the list of crimes that can be dealt with by the ICC. The French declaration is contrary to that of the Government of New Zealand, which states: 
 ``The Government of New Zealand notes that the majority of the war crimes specified in article 8 of the Rome Statute, in particular those in articles 8(2)(b)(i)-(v) and 8(2)(e)(i)-(iv), which relate to various kinds of attacks on civilian targets, make no reference to the type of the weapons employed to commit the particular crime. The Government of New Zealand recalls that the fundamental principle that underpins international humanitarian law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that, rather than being limited to weaponry of an earlier time, this branch of law has evolved, and continues to evolve, to meet contemporary circumstances. Accordingly, it is the view of the Government of New Zealand that it would be inconsistent with principles of international humanitarian law to purport to limit the scope of article 8, in particular article 8(2)(b), to events that involve conventional weapons only.'' 
Two nation states that are signatories to the statute take a wholly different and diametrically opposed view as to the appropriateness, within the confines of the jurisdiction of the court, of nuclear weapons.

John Battle: The hon. and learned Gentleman should be clear that reservations are not allowed and have not been made. France and New Zealand have made what are called ``interpreted statements'', which are not reservations because they do not change the statute in respect of those countries. There is a difference between ``reservation'' and ``interpretation'' and that is what France and New Zealand have exercised.

Edward Garnier: I note what the Minister says. That is the stance that the Government adopted in the other place.
 It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past Four o'clock.